Hamcho; Secretary, Department of Social Services and (Social services second review)
[2016] AATA 361
•31 May 2016
Hamcho; Secretary, Department of Social Services and (Social services second review) [2016] AATA 361 (31 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0758
Re
Secretary, Department of Social Services
APPLICANT
And
Hanan Hamcho
RESPONDENT
DECISION
Tribunal Dr I Alexander, Member
Date 31 May 2016 Place Sydney The decision under review is set aside and substituted with a decision that at the time of cancellation of her Disability Support Pension (DSP), Ms Hamcho did not satisfy s 94 of the Social Security Act1991 so that the decision to cancel her DSP was correct.
.......................[sgd].................................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation of payment – time of cancellation – multiple conditions – whether medical conditions were fully diagnosed, treated and stabilised – impairment rating of less than 20 points – decision set aside
CASES
Re Summers and Secretary, Department of Social Services [2014] AATA 165
LEGISLATION
Social Security Act 1991 (Cth) ss 80, 94
Social Security (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guide to Social Security Law
REASONS FOR DECISION
Dr I Alexander, Member
31 May 2016
On 25 July 2008, Ms Hamcho, who is now 46 years old, was granted Disability Support Pension (DSP) after she was found to have a rating of 20 points under the Impairment Table 3 - Lower Limb Function.
On 3 February 2014, Centrelink initiated a review of Ms Hamcho’s entitlement to DSP.
In a Job Capacity Assessment report submitted on 29 August 2014, the assessor recommended a total rating of five points under Impairment Table 3 - Lower Limb Function for left hip osteoarthritis due to congenital hip dislocation.
On 1 September 2014, Centrelink decided to cancel Ms Hamcho’s DSP on the basis that, on that date, she did not satisfy s 94 of the Social Security Act 1991 (Cth) (the Act). In particular, she did not satisfy s 94(1)(b) of the Act such that she no longer qualified for DSP.
On 2 October 2014 an Authorised Review Officer (ARO) affirmed the earlier decision.
In a decision dated 9 January 2015, the former Social Security Appeals Tribunal (SSAT) (now the Social Services and Child Support Division) set aside the ARO’s decision on the basis that on the date of cancellation, Ms Hamcho had a rating of 20 points under Impairment Table 3 and had a continuing inability to work so that she did qualify for DSP. The SSAT did not consider any other medical conditions, other than left hip osteoarthritis due to congenital hip dislocation.
In these proceedings, the Secretary, Department of Social Services (the Secretary) seeks review of the decision of the SSAT.
At the hearing Ms Hamcho was self-represented and assisted by an interpreter in the Arabic language.
ISSUES
The power to cancel Ms Hamcho’s DSP is provided by s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment “the Secretary is to determine that the payment is to be cancelled or suspended”.
The decision to cancel Ms Hamcho’s DSP is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.
Accordingly, in order to qualify for DSP Ms Hamcho must have satisfied the requirements of s 94 of the Act as at 1 September 2015, which was the date on which Centrelink cancelled her DSP (time of cancellation).
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work as defined by the Act.
The Secretary concedes, and the Tribunal accepts, that at the time of cancellation Ms Hamcho suffered medical conditions that cause impairment and she therefore satisfied s 94(1)(a) of the Act.
The claimed medical conditions include a lower limb condition (osteoarthritis of the left hip), a mental health condition (depression), migraine, gastro oesophageal reflux disease (GORD), back pain and carpal tunnel syndrome.
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a), a condition is permanent if it is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)); and
·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Impairment Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
The Secretary contends that at the time of cancellation, Ms Hamcho’s total impairment was 10 points under Impairment Table 3 so that she did not did not satisfy s 94(1)(b) of the Act and did not qualify for DSP on that date.
Ms Hamcho contends that, at the time of cancellation, her left hip condition had a severe functional impact on activities requiring use of the lower limbs, which warrants a rating of 20 points under Impairment Table 3.
Ms Hamcho also contends that, at the time of cancellation, her mental health condition was fully diagnosed, fully stabilised and fully treated and that a rating of 10 points under Impairment Table 5 should be applied.
Therefore, the determinative issue in this review is whether, at the time of cancellation, Ms Hamcho’s impairment was 20 points or more under the Impairment Tables and, if so, whether she had a “continuing inability to work”.
LOWER LIMB CONDITION
There is no dispute that Ms Hamcho suffers osteoarthritis in the left hip due to congenital hip dislocation and that the condition is permanent for the purposes of the Impairment Determination.
In a Centrelink Medical Report dated 8 February 2014 Dr Ismail, GP, lists “(L) hip severe osteoarthritis from congenital hip dislocation” as the medical condition with most impact and describes impact on ability to function as “cannot walk properly, in pain most of the time”.
On 14 May 2014, Ms Hamcho was assessed by a registered psychologist for the purposes of a Job Capacity Assessment report. For reasons that are not clear, the report was not submitted until 29 August 2014.
The assessor noted inter alia the following:
“The client stated she experiences persistent hip pain aggravated with prolonged sitting (approximately 20-30 minutes)…stated she requires holding on to a hand rail for support with negotiating stairs, is limited standing up to 2-3 minutes and is unable to walk for prolonged periods (less than 5 minutes). The client has a severe limp, mostly weight bearing on her right side, resulting in occasional falls and needing to lean on walls or furniture at home for support …stated she is unable to bend to the ground or squat and as she is unable to kneel she will pray sitting on a chair…stated that her daughter assists with domestic chores however she can stand and wash the dishes.”
The assessor recommended a rating of five points under Impairment Table 3.
The SSAT stated inter alia the following:
“Ms Hamcho gave the tribunal evidence about the way the condition affects her function that is consistent with the evidence she provided to a job capacity assessor in May 2014. She said she can walk for only a few steps without support and as long as five minutes with support. She said she leans on her daughter when she goes out and leans on walls and furniture at home.”
Ms Hamcho told the Tribunal that she can drive locally in Granville, can use public transport if accompanied by her daughter, can walk for 5-10 minutes and can climb ten steps if necessary, albeit with the use of a walking stick or handrail.
In a report dated 18 August 2015, Dr Quain, orthopaedic surgeon, confirms that Ms Hamcho has an untreated congenital dislocation of the left hip and states he has read the Impairment Tables “in some detail” and expresses an opinion that she does qualify for 20 points on the basis that “she is unable to walk around a shopping centre or supermarket without assistance, stand from a sitting position without assistance”.
In a report dated 27 October 2015, Dr Frean, occupational physician, notes activities and tolerances at the “relevant date” as follows:
“Ms Hamcho reported that at or around 1 September 2014, she was able to drive her car to the local shops or hospital, accompanied by one of her sons or daughters. She told me that she did not try to use public transport since she was able to drive or travel by car or taxi. She indicated that she would need to be accompanied by her daughter or son when travelling on public transport. With regard to her activities of daily living, she told me that she required assistance from her daughter to use the bathroom. I sought clarification on this since she was able to travel to the consultation by taxi, unaccompanied, and she was able to rise from the waiting room chair, walk to the consultation room and seat herself without any assistance. She clarified that the only assistance she required in the bathroom was to help lift her left leg over the high wall of the bath prior to taking a shower. She told me that she was able to undertake most of the domestic tasks including preparing food, cooking, cleaning including vacuuming, shopping and washing. She avoided any heavy lifting and sought assistance from others for any heavy work…Ms Hamcho reported that on or around 1 September 2014, she was able to sit for around 20–30 minutes, stand and walk around 5-10 minutes, using a walking stick held in the right hand for support. She avoided walking up hills but was able to negotiate up to 10 stairs holding on to the handrail, one step at a time. She was able to stoop, bend, reach above head height and partially squat.”
On clinical examination Dr Frean noted inter alia the following:
“…She had a normal posture and walked with a waddling gait, favouring her left leg and using a walking stick held in the right hand. She rose to stretch after sitting for 30 minutes while relating her history. She was observed to pick up her dropped walking stick from the floor by bending forward and partially squatting. She was able to mount and dismount the examination couch but displayed difficulty lifting the left leg and she required assistance raising that leg on to the couch…”
Dr Frean expressed the opinion that as result of Ms Hamcho’s impairment, at the time of cancellation, there was a mild functional impact on activities requiring the use of lower limbs and recommended a rating of five points under Impairment Table 3. He also considered the descriptors for moderate impairment and agreed that some, but not all, of the necessary descriptors were met.
At the hearing Ms Hamcho accepted some of the recorded history provided by Dr Frean as accurate but did not agree with his description of her ability to undertake domestic tasks. She indicated that her ability to undertake domestic tasks was more restricted, for example, she would only put washing in the machine for her daughter, would do a little dusting, would only help her daughter with cooking and would not do any vacuuming.
Dr Frean gave oral evidence by telephone. He confirmed that he considered his recorded history to be accurate and particularly, in respect of vacuuming, indicated that in his experience this was an important indicator of function and he always took special care when asking about this activity.
In respect of his assessment under Impairment Table 3, the Tribunal informed Dr Frean that he may have incorrectly interpreted the requirements for moderate functional impairment. On reflection he noted that the descriptors were a little confusing but agreed that a rating of ten points under Impairment Table 3 was acceptable.
Consideration
The question of Ms Hamcho’s functional impairment under Impairment Table 3 at the time of cancellation is, in my view, somewhat problematic.
Ms Hamcho’s self-report of symptoms and activity tolerances to the job capacity assessor and the SSAT suggests severe functional impact on activities requiring the use of lower limbs and is inconsistent with the assessment provided by Dr Frean.
Dr Frean’s report is quite persuasive in that he obtained a comprehensive medical history which addressed the relevant issues, on clinical examination made pertinent clinical observations with regard to Ms Hamcho’s functional capacity and clearly considered all the relevant descriptors in Impairment Table 3.
The reason for the apparent inconsistency in the history provided to Dr Frean is unclear. However, despite Ms Hamcho’s expressed concerns about the report, I have no reason to doubt the accuracy of Dr Frean’s recorded history and observations.
Dr Quain simply states his opinion that Ms Hamcho qualifies for 20 points but, in my view, does not provide a satisfactory explanation for this opinion. In particular, he does not explain what he understands by the phrase “without assistance”.
In my view, the descriptors in Impairment Table 3 set a relatively high bar in respect of a severe functional impact in that a person must require “assistance” in all of the described activities.
The term “assistance” is not defined in the Impairment Determination or the Act. Part 3.6.3.30 of the Guide to Social Security Law states that “Assistance means assistance from another person rather than aids or equipment the person has and usually uses”.
This interpretation was approved in Re Summers and Secretary, Department of Social Services [2014] AATA 165. In Summers the Tribunal concluded as follows:
“Assistance” is not defined in the tables or in the Act. The Secretary urged on me an interpretation of “assistance” that would mean that the assistance referred to is assistance from another person, rather than assistance from an object, such as a shopping trolley, a walking stick or a hand rail. The Secretary submitted:
The proper context for the descriptors for 10 and 20 points in Table 3 includes [paragraph] 9 of the Impairment Tables determination………[Paragraph] 9 states that a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses. Thus, the descriptors for 10 and 20 points in Table 3 are to be read in [Mr Summers’] case on the basis that he is normally using his walking stick and other aids such as trolleys in shopping centres. It would be superfluous to mention “aids, equipment or assistive technology” in the descriptors, because the rule in [paragraph] 9 of the Impairment Tables Determination requires them to be taken into account. It follows that “assistance” in the descriptors for 10 and 20 points in Table 3 does not extend to “aids, equipment or assistive technology” but is limited to assistance from a person.
I accept this submission. The conclusion that “assistance” refers to assistance from a person and not from an object or physical aid is inescapable.
In my view, apart from Ms Hamcho’s self-reported claims, there is no other convincing evidence to support a conclusion that she requires the type of “assistance” expected by the descriptors in Impairment Table 3. Therefore, I am not persuaded that, at the time of cancellation, there was a severe functional impact on activities using lower limbs.
However, I am satisfied that at the time of cancellation there was a moderate functional impact on activities using lower limbs so that a rating of ten points under Impairment Table 3 can be applied.
MENTAL HEALTH CONDITION
In a Centrelink Medical Report dated 27 July 2008, Dr Hussein, GP, lists “Depression with Anxiety” as a medical condition with significant functional impact and a date of onset in 2006. Current treatment is noted as “counselling” and future treatment as “Counselling may need antidepressants”.
In the report of 20 February 2011, Dr Ismail lists “Major Depression Anxiety Disorder” as a medical condition with significant functional impact and notes current treatment as Lovan 20 mg commenced on 8 February 2014. Dr Ismail describes impact on ability to function as “fatigue, lack of energy, lack of concentration”.
At the hearing Ms Hamcho conceded that she did not fill the prescription provided by Dr Ismail.
In a brief letter dated 20 September 2014, Mr Abaie, registered psychologist, states that Ms Hamcho was seen for two sessions and demonstrated symptoms of chronic depressive disorder and PTSD. He recommended “psychotherapy, antidepressant medication and support”.
Ms Hamcho told the Tribunal that she attended only two sessions because she found them unhelpful and had expected to be given medication that “would make me forget”. She subsequently consulted another psychologist, but attended only three sessions because she again found them unhelpful.
In a report dated 1 June 2015, Dr Collins, clinical psychologist, describes Ms Hamcho’s various symptoms and concludes that she currently meets the criteria for “a moderate recurrent major depressive episode, with anxious distress”.
Dr Collins states that Ms Hamcho’s symptoms probably predate the reported 2006 onset and that her depression and anxiety have persisted in response to a range of difficult psychosocial and interpersonal stressors.
With respect to treatment, Dr Collins notes the following:
“Ms Hamcho was uncertain when she was first prescribed anti-depressant medication but believed it to be around three years ago. She stated that she ceased the medication after a few months due to limited efficacy. She was re-prescribed an anti-depressant around February 2014, which she reported taking for up to 12 months. Ms Hamcho again stated that it had limited effect, which prompted her cessation of the drug.
Ms Hamcho reported that she has also attended therapy, also with limited results. She explained that she first saw Ms Bulant Ada, psychologist, approximately one year ago. She said that she attended for one session. She was more recently referred to Mr Kasim Abaie, psychologist. Ms Hamcho stated that she attended approximately three sessions from around September 2014. She advised that she did not find these sessions to be helpful, indicating that she felt pathologised by both clinicians. She told me that she believes she is “normal” and that there is nothing wrong with her “brain”. Ms Hamcho identified that she has had many difficult experiences over her lifetime, and most recently her mood has been negatively impacted by her youngest son’s illness and her elder son’s admission into custody. She did not believe that being affected by such stressors was abnormal.”
Dr Collins goes on to state the following:
“I note that for the purposes of the impairment tables, a disorder also needs to be fully stabilised and treated. It is difficult to ascertain whether Ms Hamcho has engaged in reasonable treatment, as per the requirements. One could argue that two attempts at psychotropic medication is reasonable treatment. However, with regards to therapeutic treatment, attending a total of four sessions with two different psychologists may not be considered a reasonable attempt at therapy. I acknowledge that Ms Hamcho felt pathologised through that process, and which hindered her participation. In resolving the issue, I have taken the view that the combination of anti-depressant treatment and attempting therapy represents a reasonable attempt at treatment.”
Medicare PBS records provided to the Tribunal indicate that no prescriptions for anti-depressant medication were supplied to Ms Hamcho between June 2005 and July 2014. On 22 August 2014, nine days before the time of cancellation, a prescription for an anti-depressant, duloxetine (28 tabs) was supplied. A second prescription was supplied on 28 September 2014 with no additional prescriptions in the following two months.
Medicare records indicate that Ms Hamcho attended Mr Abaie, registered psychologist on two occasions, 6 September 2014 and 20 September 2014, both after the time of cancellation. She subsequently attended Dr Abu-Arab, clinical psychologist, on three occasions, 10 December 2014, 9 March 2015 and 16 March 2015.
The Tribunal was provided with a report prepared by Dr Hampson, Senior Clinical Psychologist, Health Professional Advisory Unit. This report was based on relevant documents and reports provided to Dr Hampson and no contact with Ms Hamcho.
Dr Hampson notes inter alia the following:
“At the time of cancellation major depression was not confirmed by a psychiatrist or clinical psychologist (as required for Table 5). Report dated 12.6.15…Dr E. Collins provides a diagnosis of major depressive disorder…There is no attempt in Dr Collin’s report to comment on the customer’s mental state/diagnosis at the time of cancellation or to provide a definitive retrospective diagnosis. Reliance on customer self-report of symptoms at the time of cancellation would be inappropriate, particularly in view of a tendency to exaggerate symptoms (Dr Collins noted a tendency to exaggerate responses to the SCL-90-R which she interpreted as a ‘cry for help’…Evidence-based treatment for major depression would include a reasonable trial of a least 2 different antidepressants, preferably from different classes. Dr E. Collins appears to support this view when she states in her report …‘One could argue two attempts at psychotropic medication is reasonable treatment’ …Medicare records indicate Ms Hamcho attended 6 sessions of psychological intervention in 2011 and re-commenced psychological treatment on 6.09.14 (outside the claim period) when she attended a total of 5 sessions with 2 different psychologists. Based on the available evidence and following consultation with Dr A. Polong (HPAU medical advisor) my opinion is that treatment for Ms Hamcho’s mental health condition at the time of review and since cancellation could not be described as reasonable.”
Consideration
The evidence with respect to Ms Hamcho’s mental health condition can at best, be described as incomplete and inconsistent.
I accept that Ms Hamcho has suffered a range of psychosocial and interpersonal stressors over several years and that these stressors have caused symptoms consistent with depression and anxiety.
In 2008, Dr Hussein, Ms Hamcho’s GP, diagnosed “depression with anxiety’” and recommended counselling.
In 2011, Ms Hamcho attended six sessions of psychological treatment. However, a diagnosis was not confirmed by a psychiatrist or clinical psychologist until she saw Dr Collins in June 2015, about nine months after the time of cancellation.
As noted above, the diagnosis of a permanent mental health condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.
It follows that at the time of cancellation, Ms Hamcho’s mental health condition was not fully diagnosed for the purposes of the Impairment Determination.
Furthermore, apart from the psychological treatment in 2011, there is no evidence of any other treatment until just before the time of cancellation when, on 22 August 2014, Ms Hamcho appears to have been supplied with anti-depressant medication for the first time.
Dr Collins’ opinion that Ms Hamcho had engaged in reasonable treatment prior to or at the time of cancellation was clearly based on the assumption that the history of treatment provided by Ms Hamcho was reliable. This assumption has not been supported by other documentary evidence, such that, in my view, her opinion carries little weight.
On my reading of the evidence, I am not satisfied that, at the time of cancellation, Ms Hamcho had undertaken reasonable treatment for her claimed mental health condition.
It follows that I am not satisfied that, at the time of cancellation, Ms Hamcho’s mental health condition was fully diagnosed or fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.
BACK PAIN
In his report of 8 February 2014, Dr Ismail lists “back pain” as a medical condition that was generally well managed and that causes minimal or limited impact on ability to function. No further details were provided.
On 14 May 2014, Ms Hamcho told the job capacity assessor that her back pain is a “result of her hip condition” and that she “wakes up with pain causing difficulty to stand up out of bed, she is unable to bend to the ground and unable to remain seated in a vehicle for long periods (approximately 20-30 minutes)”.
A CT scan of the lumbar spine performed on 10 September 2014 is reported as showing evidence of some early spondylosis, left sided “foraminal narrowing at L4/5 secondary to ligamentum flavum” thickening causing mild pressure on the exiting nerve root and generalised posterior disc bulge at the same level.
In his report of 18 August 2015, Dr Quain states the following:
“With a significant shortening she does put an increased strain on her lower back and although there are not significant degenerative changes there is CT evidence of a disc protrusion at 4/5 and possible root entrapment…I would actually give her 5 points due to the CT evidence of L4/5 disc lesion and due to the chronic effect of the short leg gait with instability of the hip on her lumbar spine”.
In his report of 27 October 2015, Dr Frean notes that that Ms Hamcho reported a history of non-specific mid/low back pain from around 2009 and 2010 which she attributed to left leg shortening and abnormal gait.
Dr Frean comments on the CT findings and expresses the opinion that these findings “are likely to be incidental and of doubtful clinical significance, since she did not describe any symptoms or display any clinical features suggestive of nerve root irritation”. He also opines that there was no functional impairment from any condition of the spine.
I accept that Ms Hamcho suffers intermittent low back pain and that the CT scan demonstrates some abnormalities. However, on the available and somewhat limited evidence, I am not persuaded that Ms Hamcho suffers any functional impairment that can be attributed to the CT scan findings, therefore, a rating of zero points under Impairment Table 4 would apply.
OTHER MEDICAL CONDITIONS
In his report of 8 February 2014, Dr Ismail lists “migraine headache” and “gastroesophageal reflux” (GORD) as medical conditions that are generally well managed and that cause minimal or limited impact on ability to function but provides no other details.
In a letter dated 31 August 2015, Dr Ayoub states that Ms Hamcho has been suffering from migraine headaches intermittently for the past seven years and is being treated with Imigrane.
For present purposes I accept that the conditions of migraine and GORD are permanent for the purposes of the Impairment Determination. In my view, however, there is insufficient evidence before the Tribunal to allow for any reasonable assessment as to any impairment caused by these conditions so that a rating under the Impairment Tables cannot be applied.
In a referral letter dated 13 October 2011, Dr Ismail notes the presenting problem as “Carpal tunnel for EMG” and requests further opinion and management.
There is no other evidence before the Tribunal with respect to this condition and, therefore, the condition cannot be considered to be permanent for the purposes of the Impairment Determination.
DECISION
For reasons set out above, I am satisfied that, at the time of cancellation, Ms Hamcho did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.
The decision under review is set aside and in substitution a decision that at the time of cancellation of her DSP, Ms Hamcho did not satisfy s 94 of the Act so that the decision to cancel the DSP was correct.
I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member ..........................[sgd]..............................................
Associate
Dated 31 May 2016
Date(s) of hearing 26 & 27 April 2016 Solicitors for the Applicant Department of Human Services Respondent In person
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